Before the Federal Communications Commission Washington, DC 20554 In the Matter of Standardizing Program Reporting Requirements for Broadcast Licensees ) ) ) ) MB Docket No. 11-189 REPLY COMMENTS OF THE NATIONAL ASSOCIATION OF BROADCASTERS Jane E. Mago Jerianne Timmerman NATIONAL ASSOCIATION OF BROADCASTERS 1771 N Street, N.W., Sixth Floor Washington, DC 20036 (202) 429-5430 February 9, 2012
TABLE OF CONTENTS EXECUTIVE SUMMARY... ii I. THE RECORD DEMONSTRATES THAT A STANDARDIZED FORM CONTAINING GOVERNMENT-MANDATED CONTENT CATEGORIES IS NOT NEEDED TO ENHANCE VIEWER ACCESS TO AND USE OF INFORMATION ABOUT STATIONS PROGRAMMING... 1 II. THE COMMENTS DEMONSTRATE THAT SEVERAL OTHER PROPOSED REPORTING REQUIREMENTS ARE UNNECESSARY AND WILL NOT SERVE THE COMMISSION S POLICY OBJECTIVES... 7 III. CONCLUSION... 11
EXECUTIVE SUMMARY The Commission now has the benefit of a growing evidentiary record on the wide range of issues raised by proposals to expand dramatically television broadcasters program reporting obligations. Multiple commenters have discussed the practical, policy, and legal concerns implicated by the proposed standardized reporting form incorporating government-mandated content categories. Broadcasters have demonstrated that the NOI s proposed content categories are not, in fact, easy to understand or apply. To the contrary, the content coding that such a form requires would consume considerably more station staff time than the current issues/programs lists, while also providing limited (and perhaps less easily understandable) information to viewers about the wide variety of programming and services local stations offer. The proposed form, therefore, will not serve effectively the key policy goal that the NOI identifies fostering dialogue between stations and their viewers about programming that responds to each community s needs and interests. Furthermore, the record contains no evidence to contradict NAB s showing that use of the proposed content categories, and any consolidated database that might be generated from them, will not produce valid and reliable data on which the Commission could rely. As a legal matter, any such database would prove superfluous with respect to the Commission s broadcast licensing functions; numerous commenters have pointed to the statutory bar on comparisons among stations in the licensing context. The record also is replete with legal analyses showing that the Commission has no statutory authority to unduly burden licensees solely for generalized research purposes. This is true even if the proposed content coding mandate would generate reliable results, but as several submissions in the docket attest, the approach in practical application appears to generate great disagreement or confusion. Accordingly, the proposed standardized form raises serious First Amendment concerns that no commenter has effectively refuted. The record also makes plain that many of the specific suggested additions to the proposed reporting form are either unnecessary or duplicative of other disclosures. But several commenters have raised options that merit further consideration. These include but are not limited to FCC guidance on improving the existing issues/programs lists or adaptation of existing program report forms for this new purpose. NAB is eager to work with the Commission and other stakeholders on crafting a reporting approach that will enhance viewer access to, and understanding of, the full range of TV stations service to their communities. ii
Before the Federal Communications Commission Washington, DC 20554 In the Matter of Standardizing Program Reporting Requirements for Broadcast Licensees ) ) ) ) MB Docket No. 11-189 REPLY COMMENTS OF THE NATIONAL ASSOCIATION OF BROADCASTERS The National Association of Broadcasters ( NAB ) hereby submits these reply comments concerning the Commission s Notice of Inquiry ( NOI ) regarding proposals for standardizing broadcast licensees program reporting. 1 I. THE RECORD DEMONSTRATES THAT A STANDARDIZED FORM CONTAINING GOVERNMENT-MANDATED CONTENT CATEGORIES IS NOT NEEDED TO ENHANCE VIEWER ACCESS TO AND USE OF INFORMATION ABOUT STATIONS PROGRAMMING NAB reiterates its support for the fundamental goal outlined in the NOI fostering dialogue between television stations and their viewing audiences about programming that responds to community needs and interests. The comments filed to date plainly show, however, that jettisoning the current issues/programs list in favor of a complex, standardized reporting form incorporating government-mandated content categories is not necessary to meet this goal or any other valid policy objective. The issues/programs list already elicits the kind of purposeful programming information that is relevant to the Commission s regulatory responsibilities, provides assurance that stations have met their obligations to offer issue-responsive programming, and serves as a 1 See Standardizing Program Reporting Requirements for Broadcast Licensees, Order, 26 FCC Rcd 16525 (2011) ( NOI ); see also id., Order, DA 12-23 (MB rel. Jan. 6, 2012) (extending Reply Comment deadline to Feb. 9, 2012).
source of information for parties who may want to challenge renewal applications. 2 The Public Interest Public Airwaves Coalition s ( PIPAC ) assertion that the issues/programs list has failed because no license renewals have been denied in 30 years is patently wrong. 3 There is no causal connection between the issues/programs list and the failure of petitions to deny filed against Milwaukee and Chicago area stations which focused not on the licensees program reports but on an alleged lack of particular content during a limited period. 4 Moreover, the Commission has long held that ʻ[t]he choice of what is or is not to be covered in the presentation of broadcast news is a matter to the licensee s good faith discretion and that the agency will not review the licensee s news judgments. 5 The quantity of programming alone is not necessarily an accurate measure of the overall responsiveness of a licensee s programming. 6 PIPAC s effort here to focus on the quantity of particular program types is similarly fraught with serious policy, statutory, and constitutional concerns and could not be used as a basis for denying renewal applications. 2 Comments of the National Association of Broadcasters, at 4-5 (filed Jan. 27, 2012) ( NAB Comments ) (quoting and citing Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, 98 FCC 2d 1076, 1109 (1984) ( TV Deregulation Order )). 3 Comments of the Public Interest Public Airwaves Coalition, at 38-39 (filed Jan. 27, 2012) ( PIPAC Comments ) (discussing failure of effort against Chicago and Milwaukee stations in 2007-10). 4 See Chicago Media Action and Milwaukee Public Interest Media Coalition, 22 FCC 10877, 10877 (2007) ( The petitions contend that Chicago and Milwaukee broadcast stations have failed to present adequate programming relating to state and local elections during the 2004 election campaign. ). 5 Id. at 10879 (quoting American Broadcasting Cos., 83 FCC 2d 302, 305 (1980)). The 2007 decision also stated plainly that the Commission has very little authority to interfere with a licensee s selection and presentation of news and editorial programming. Id. at 10878. 6 Id. at 10879 (citing TV Deregulation Order, 98 FCC 2d at 1090). 2
The comments in this proceeding also clearly demonstrate that imposing a standardized form requiring stations to categorize their programming into rigid content categories will be extremely burdensome and could siphon away resources that otherwise would be spent on news and other public interest programming. 7 For instance, stations KWCH-DT and KSCW-DT estimate that preparing reports for a single week would require 86 hours of staff time, while doubling the reporting period would double the burden. 8 LIN Media estimates that data entry alone would require approximately an hour for each half hour of programming with an additional 30 minutes for legal and management review. 9 Another station reports that the proposed content-based recordkeeping requirements would practically double the man hours currently required to complete the quarterly issues/programs list. 10 Commenters have also pointed out that the tasks would fall heavily on newsroom personnel or other staffers involved in production of issue-responsive programming. 11 Moreover, a standardized, category-based form will provide limited countervailing public interest benefits. The record demonstrates that any one size fits all approach will effectively underreport and mischaracterize what television broadcasters are doing to serve the interests and 7 See NAB Comments, at 11-18; Comments of The Radio Television Digital News Association, at 5-11 (filed Jan. 27, 2012) ( RTDNA Comments ); Joint Comments of the Named State Broadcasters Association, at 20-25 (filed Jan. 27, 2012) ( Named State Broadcaster Ass n Comments ); Joint Comments of the North Carolina Association of Broadcasters, The Ohio Association of Broadcasters, and The Virginia Association of Broadcasters, at 4-13 (filed Jan. 27, 2012) ( NCAB, OAB, and VAB Comments ); Comments of LIN Television Corporation, at 1-4 (filed Jan. 27, 2012) ( LIN Comments ); Comments of Trinity Christian Center of Santa Ana, Inc., et al., at 18-20 (filed Jan. 27, 2012) ( Trinity Christian Joint Comments ). 8 NAB Comments, Attachment B, Declaration of Laverne E. Goerning 4; see also RTDNA Comments, at 6-9 (a member survey demonstrates that a standardized form will be far more time consuming than the program/issues list). 9 LIN Comments, at 2-3. 10 NCAB, OAN, and VAB Comments, at 3-4. 11 RTDNA Comments, at 9-11; Named State Broadcasters Ass n Comments, at 25-26. 3
needs of their community. 12 Such results obviously will not serve the Commission s objectives. A category-based reporting form as contemplated in the NOI cannot fully and reliably inform viewers about what TV stations are doing to serve their needs and interests, nor will it better assist the Commission in reviewing license renewal applications. 13 And even if reporting burdens could be imposed for pure research purposes (which they cannot), the proposed categories content codes cannot produce statistically valid data sets upon which either the Commission or third-party researchers could rely. 14 The few substantive comments supporting the proposed standardized reporting form do not undermine these conclusions. PIPAC s suggestion that its three proposed programming categories local news, civic affairs, and electoral affairs strikes the correct balance between reducing the burdens imposed by Form 355 and the Commission s goal of collect[ing] information that is relevant to the public s and [the Commission s] analysis of stations service to their communities is demonstrably flawed. 15 As the record reflects, PIPAC s three content categories will not produce useful, reliable information, but will more likely underreport or unintentionally mischaracterize the issue-responsive programming that TV stations broadcast. Even PIPAC admits that any given program or program segment may reasonably fall into more than one category. 16 RTDNA presented the results of a member survey that is particularly 12 See NAB Comments, at 11-16; Comments of National Public Radio, at 4-6 (filed Jan. 27, 2012) ( NPR Comments ); RTDNA Comments, at 11-16; NCAB, OAB, and VAB Comments, at 10-11. 13 See NAB Comments, at 14-16; NPR Comments, at 4-6; RTDNA Comments, at 11-16; NCAB, OAB, and VAB Comments, at 7. 14 NAB Comments, at 12-13 and Attachment A. 15 PIPAC Comments, at 11 (quoting NOI 24). 16 PIPAC Comments, at 19. Consequently, those broadcasters proposing an alternative reporting form argued that programming should be included in every category for which it qualifies, so as to increase the accuracy and utility of the overall report. Joint Comments of 4
enlightening on this point. RTDNA asked its members to apply PIPAC s content codes to a hypothetical story about an incumbent city council member s actions in a council meeting during election season. 17 The results demonstrate that there was substantial disagreement about how to categorize such a story: 54.1% of the respondents categorized it as local news, 36.7% categorized it as local civic affairs, and 9.2% categorized it as electoral affairs. 18 This kind of widespread disagreement as to how to categorize a single story belies PIPAC s bald assertion that its three programming categories are clear and easy to understand. 19 Rather, the results of RTDNA s survey demonstrate that PIPAC s categories will not produce reliable, useful information. If anything, their use is more likely to skew the reporting results and to underreport or unintentionally mischaracterize the varied programming that TV stations air to serve their local viewers. 20 PIPAC s assurances that a standardized, category-based form will not be unduly burdensome also are unrealistic. For instance, PIPAC asserts that reporting on a program segment-by-segment basis should not be onerous because stations already use segments for a Barrington Broadcasting Group LLC, et al., at 8-9 (filed Jan. 27, 2012) ( Joint Broadcaster Comments ). 17 RTDNA Comments, at 12-13. 18 Id. at 13; see also NAB Comments, at n.41 (acceptable level of agreement among categorizers is 80% or above). 19 PIPAC Comments, at 18. 20 For example, RTDNA s survey clearly showed that, when faced with programming that could easily fit in two or more categories, station coders are likely to use the broadest category (e.g., local news) as the default category. It is also clear that stations serve their local communities with programming that does not fit into any of PIPAC s proposed categories, such as emergency-related programming, religious or cultural programming or programs covering significant local events (e.g., community parade or festival, local high school or college sports championship game, etc.). 5
variety of purposes. 21 That stations air segment-based news and public affairs programming is unremarkable, but it portends nothing with respect to the time and effort that would be required to review and categorize each and every program segment. Content coding is not why stations use segments currently, and the record here amply demonstrates that requiring such coding would be excessively burdensome. 22 Equally important, a standardized form that elevates certain government-favored content over other content will significantly undermine broadcasters First Amendment rights. Multiple commenters explain that a government mandate requiring licensees to report specific types of content will inevitably pressure those licensees to carry such favored programming. 23 Were it to adopt such a form, the Commission would inject the well-recognized raised eyebrow regulatory dynamic into its reporting requirements and such a step would not go unnoticed. As the D.C. Circuit has recognized, the Commission has a long history of employing... a variety of sub silentio pressures and raised eyebrow regulation of program content... as means for communicating official pressures to the licensee. 24 PIPAC s comments confirm that its proposed form is designed to serve that outcome. PIPAC argues in essence that a standardized form featuring content categories is necessary to 21 PIPAC Comments, at 10. 22 See NAB Comments, at 18-21, 28-30 and Attachment A at 2-6; RTDNA Comments, at 5-10; NCAB, OAB, and VAB Comments, at 11-13; Joint Broadcaster Comments, at 9-10 (arguing that a requirement to break programming down into individual program segments would create significant and unnecessary burdens ). 23 See NAB Comments, at 32; Trinity Christian Joint Comments, at 17-18; RTDNA Comments, at 16-19; Named State Broadcaster Ass n Comments, at 27-32; Joint Comments of Barrington Broadcasting Group LLC, at 15-17 (filed Jan. 27, 2012); NCAB, OAB, and VAB Comments, at 7-10. 24 MD/DC/DE Broadcasters Ass n v. FCC, 236 F.3d 13, 19 (D.C. Cir. 2001) (quoting Community-Service Broadcasting of Mid-America, Inc. v. FCC, 593 F.2d 1102, 1116 (D.C. Cir. 1978)). 6
ensure that TV stations air more local news, civic affairs programming and electoral affairs programming because, in PIPAC s view, stations today do not air adequate amounts of such programming. 25 As PIPAC states, the standardized form will specify exactly what [broadcasters] are required to report instead of leaving the reporting largely to the broadcasters discretion. 26 Particularly given PIPAC s intention that a station s failure to report enough programming in PIPAC s chosen categories be used as a basis for challenging license renewals, 27 the proposed form is precisely the kind of sub silentio incursion into a broadcaster s editorial decision-making that the Commission in the past has taken pains to avoid and that the courts have found highly suspect. II. THE COMMENTS DEMONSTRATE THAT SEVERAL OTHER PROPOSED REPORTING REQUIREMENTS ARE UNNECESSARY AND WILL NOT SERVE THE COMMISSION S POLICY OBJECTIVES Beyond the myriad flaws in the proposed category-based standardized form discussed above, a number of specific proposals made in this proceeding fail to serve FCC policy objectives, are unnecessary, or are unduly burdensome. There is accordingly no basis for the Commission to adopt them. As an initial matter, the Commission should disregard PIPAC s call to require TV broadcasters to report on spending on campaign advertisements. 28 PIPAC itself admits that 25 26 27 28 PIPAC Comments, at 2; see also id. at 10, 13-16, 28-29, 43. Id. at 43. Id. at 38-39. PIPAC Comments, at 17-18. NAB notes that PIPAC s call for the Commission to require that all electoral affairs programming be reported in lowest unit cost periods is supported only by the bare assertion that such programming is most important. Id. at 9-10. While NAB does not dispute the importance of electoral affairs programming, all programming that serves a community s needs and interests is important and mandating reporting for all of one type of content would multiply the burdens on broadcasters without appreciably advancing the Commission s legitimate policy objectives. See, e.g., NAB Comments, at 24-25. 7
station reporting will not solve the problem faced by voters of being inundated by one-sided, often negative, paid political advertisements. 29 On this point, PIPAC is correct: Broadcasters are not responsible for enforcing federal and state campaign election disclosure laws or for the contents of political advertisements 30 those responsibilities lie elsewhere. PIPAC s further suggestion that any new reporting form should be machine-readable so as to populate a searchable, integrated database is flawed on a number of counts. 31 First, there is no empirical evidence to support PIPAC s claim that an online database will be easier for the public to use 32 than a simple online posting of information provided in plain English. Second, PIPAC s assertion that a searchable, integrated database will support the ability to draw comparisons between stations is irrelevant here. 33 Comparative information is not a valid basis for evaluating a renewal application because the statutory standards for broadcast licensing prohibit such comparisons. 34 Third, whether a database arguably might benefit research by academics, students, and journalists 35 also is irrelevant; the Commission lacks legal authority to impose burdensome reporting mandates on broadcasters solely for research purposes. 36 The Commission also should reject PIPAC s demands that new and duplicative sponsorship identification reporting requirements be imposed on newscasts, talk shows, or 29 30 PIPAC Comments, at 17. Indeed, broadcasters cannot for any reason alter or remove a spot or program containing a candidate s use of a broadcast facility. See WMUR-TV, Inc., 11 FCC Rcd 12728 (1996). 31 32 33 34 35 36 PIPAC Comments, at 26. Id. at 32-33. Id. at 28-30. NAB Comments, at 8 (citing 47 U.S.C. 309(k)). PIPAC Comments, at 32-34, 39-41. NAB Comments, at 9-11. 8
similar informational programming segments. 37 The Communications Act and the Commission s rules already require licensees to identify the providers of sponsored matter (exclusive of obvious commercials) during the airing of the program, without regard to the nature of the program content. 38 These requirements provide a direct, sensible means for informing viewers about the sponsors of the programming matter being aired. To the degree that PIPAC suggests that this docket be used to expand the scope of the current sponsorship identification requirements for certain types of programming, the record here is barren of any basis for doing so and the notion should be rejected out of hand. In any event, the Commission s existing sponsorship identification rules remain the subject of a separate pending proceeding which should not be prejudged here. 39 Similarly, the Commission should decline to require stations to report on whether programs or program segments are the product of a shared services agreement or similar cooperative arrangements. 40 As demonstrated in the Commission s Online Public File Proceeding, such agreements are private contracts which, in many instances, do not relate to broadcast content at all. 41 There is no evidence to suggest that a blanket rule opening all such private contracts to public inspection will serve the public interest. The Commission should decide in a separate proceeding whether or to what extent such agreements should be disclosed. 37 Id. at 21. 38 47 U.S.C. 317(a)(1); 47 C.F.R. 73.1212(a). 39 See Sponsorship Identification Rules and Embedded Advertising, 23 FCC Rcd 10682 (2008). 40 See PIPAC Comments, at 21-22. 41 See, e.g., Comments of the National Association of Broadcasters, MM Docket Nos. 00-168, 00-44, at 28-29 (filed Dec. 22, 2011); Comments of the National Association of Broadcasters on Proposed Information Collection Requirements, MM Docket Nos. 00-168, 00-44, at 15-16 (filed Jan. 23, 2012). 9
In addition, the Commission should not require stations to provide detailed reporting regarding closed captioning and video description. 42 The Commission s established complaint process is the appropriate mechanism for addressing viewer concerns about closed captioning and video description problems. There is no industry-wide failure that could arguably justify new, burdensome reporting obligations. PIPAC s notion that reporting the number of emergency accessibility complaints will cause broadcasters to pay attention if and when complaints are received is fallacious. 43 Broadcasters already take viewer complaints extremely seriously, and the Commission has no basis to conclude otherwise. PIPAC s argument that reporting on video description will help viewers find such programming is illogical. 44 Any reporting would take place after the programming airs and thus cannot serve as an aid for finding video-described programming in advance of its airdate and time. Finally, with regard to composite week sampling techniques, nothing in the comments significantly undermines NAB s position that a composite week approach has a number of shortcomings. 45 PIPAC s efforts to support its favored sampling approach are unconvincing and do not address the difficulties that NAB has identified. 46 However, the record now before the 42 See PIPAC Comments, at 22-25; Joint Comments of Telecommunications for the Deaf and Hard of Hearing, Inc., et al. (filed Jan. 27, 2012). Issues related to those obligations are pending in other Commission proceedings and should not be prejudged here. See generally, Closed Captioning of Video Programming, Telecommunications for the Deaf, Inc., Petition for Rulemaking, 20 FCC Rcd 13211 (2005); Closed Captioning of Video Programming; Closed Captioning Requirements for Digital Television Receivers, 23 FCC Rcd 16674 (2008). 43 44 45 46 PIPAC Comments, at 25. Id. at 24. PIPAC Comments, at 6-7. See PIPAC Comments, at 6-9; NAB Comments, at 22-25. 10
Commission raises some alternative reporting approaches that should be considered, e.g., format adjustments to the current issues/programs lists or adaptation of an existing FCC program reporting form. NAB would be pleased to engage with the Commission in determining whether one of these options (or some combination of them) will enhance viewer access to, and understanding of, information about stations issue-responsive programming. 47 Whatever approach is ultimately taken, the Commission should recognize the importance of allowing stations flexibility to report on programming (regardless of category) that they believe significantly served their audiences. 48 III. CONCLUSION As the Commission continues to investigate options to help viewers more quickly and easily access and understand their local stations programming records, the agency must keep in mind the proven benefits and effectiveness of the existing reporting mechanism. Whatever program reporting mechanism the Commission ultimately develops, the focus should be on simplicity with respect to both station compliance and viewer comprehension. Reporting obligations based on these basic principles should promote dialogue between stations and their 47 See NAB Comments, at 22-25. The actual value of any sampling technique turns on the use the Commission expects to make of the data. Id. at 22. To the extent the Commission is looking for a snapshot of station s performance, a sampling technique may be useful, but there is no compelling reason to favor a composite week over a random full week. Id. Several broadcast groups supported use of a random full week. See Joint Broadcaster Comments, at 11-13 (arguing that use of a random week is more practical, less burdensome and less likely to result in errors). 48 A number of commenters stressed this point. See Joint Broadcaster Comments, at 10-11; NCAB, OAB, and VAB Comments, at 7-11; Trinity Christian Joint Comment, at 16. 11
viewers, assist the Commission in discharging its regulatory responsibilities, and avoid unduly infringing upon broadcasters First Amendment rights. Respectfully submitted, NATIONAL ASSOCIATION OF BROADCASTERS By: Jane E. Mago Jerianne Timmerman February 9, 2012 NATIONAL ASSOCIATION OF BROADCASTERS 1771 N Street, N.W., Sixth Floor Washington, DC 20036 (202) 429-5430 12
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